(I know there must be a more apt movie analogy. Can you think of something where an actor has a great role or plays the role very well, but is overshadowed or not up to the part in the last half hour?)

ADDED: You know if this campaign were a movie, Hillary would have to win... or at least "go the distance." She would be the central character, because the story is most interesting from her point of view. She's got a fabulous backstory, which includes suffering, but she starts out on top and full of hubris. Along come the one man who can block her path to fulfillment. She's torn down and laid low, humiliated once again. But she needs to learn to fight, and she's not going to give in. Come on, I'm getting chills just sketching it out. If the movie was about Obama, sure, it should have ended on Super Tuesday, with just an epilogue showing him in the White House. But if he's not the central character, we're still building toward the most thrilling climactic scenes.

So I did some digging. This morning, I finally got to the bottom of the brouhaha--or as close to bottom, it seems, as anyone can get.

This better be good! MSM does "some digging" and gets kinda close to "the bottom" of it. I was just blogging the facts that I knew, by the way. It was Romano who wrote: "Apparently, Obama has mailed these postcards to all Texas county delegates, not just his own." (Boldface added here and below.) Now, Romano has this:

Turns out that the Obama campaign was correct to claim that the Clinton delegate in question, Christopher Cohen, was misidentified on their working list as an Obama supporter. I have obtained a copy of the spreadsheet and double-checked his entry. Not only that, but three other Clinton supporters who have contacted me to complain about receiving Obama postcards are ALSO identified on the aforementioned spreadsheet as Obama delegates. So the Obama campaign was, in fact, working off a flawed list, and that explains why Cohen and his fellow Clintonites received Obama postcards, which the Obama camp maintains were intended only for their own delegates.

So you got a copy of a spreadsheet from the Obama campaign, and according to that, my son and those 2 other persons — just those 3! — are incorrectly coded. What are the odds?!

That said, Cohen and the two of the other delegates in question are listed correctly--that is, as pro-Clinton, not pro-Obama--on the website of the Travis County Democrats. Why the discrepancy? Blame the middleman. According to spokesman Hector Nieto of the Texas Democratic Party, "the information that we gave to the campaigns was information given to us by the individual precincts. We then sent that information to a contractor to key it in to a spreadsheet. There's a possibility that an error was made when the information was keyed in." In other words, the precincts reported the correct candidate affiliations to the state party, but an outside contractor likely screwed up when entering those affiliations into a single spreadsheet -- meaning that the Clinton and Obama campaigns received lists that incorrectly displayed at least a few Clinton delegates pledged to Obama (and perhaps vice versa).

So Nieto is just guessing.

I was basing my original item on the affiliations posted to the Travis County Democrats website, which list Cohen (and two other delegates who received Obama postcards) as Clinton supporters; at the time, it appeared that Obama was knowingly asking his rival's delegates for support. But now it's clear that the Obama campaign received a spreadsheet indicating that these three delegates were pro-Obama, and thus it's only fair to conclude that Obama is not, as my headline suggested, playing the passive delegate-'poaching' game. Only Clinton--with her robocalls, which started in Iowa and continue in Texas--is on the prowl.

How did we get from Nieto guessing to clarity? This is really the closest "anyone" can get to the bottom of things?

Stephen Marche has this article in TNR rejecting the adjective "Shakespearean" as applied to the downfall of Eliot Spitzer:

Characters like Hamlet or Macbeth are destroyed by the virtues which lifted them to greatness in the first place. The most remarkable feature of the whole Spitzer debacle, his extreme hypocrisy, is maybe the one characteristic all Shakespearean tragic heroes lack. Macbeth may be a sociopath and Othello may be vicious, but they live out the consequences of their own characters with dignity. Exactly unlike Spitzer. His destruction is far more mundane--the guy who couldn't keep it in his pants.

Is Marche right? Think about it.

In this Bloggingheads clip, Bob Wright notes that the "average man" is deterred from using prostitutes out of morality, fear of discovery, or — and this is the most important — anxiety about entering "alien terrain." That is, you don't know how these things work, whether dangerous men might show up and hurt you and so forth. But because Spitzer prosecuted prostitution rings, he became "intimately familiar" with what this "alien terrain" is like. Moreover, in prosecuting these people, he probably gave a lot of thought to how they might have done things a little differently and gotten away with it. Being a smart, arrogant guy, he must have imagined how he would get away with it. It's not surprising, Bob says, that Spitzer behaved irrationally after he penetrated the world of prostitution, but what got him there in the first place? That's the difficult step that separates him from ordinary men. He got there by being a hardcore prosecutor.

Under Bob Wright's theory, doesn't Spitzer meet Marche's standard of Shakespeareanosity? Was he not destroyed by the virtues that lifted him to greatness in the first place?

By the way, at the end of the Bloggingheads clip, Mickey Kaus notes a Dick Morris connection. So if Spitzer really is a Shakespearean tragic hero, then Dick Morris seems to be Lady MacBeth or the ghost of Hamlet's father.

Big thanks to my son John Althouse Cohen for pointing to the way Bob Wright's theory undercuts Marche.

IN THE COMMENTS: Blake nails the Shakespearean point:

If Spitzer were a Shakespearean hero, a la Othello or Hamlet, his primary "virtue"--ruthless pursuit of the law--is what would be his undoing.

So, he'd end up having to prosecute his daughter for some wrongly perceived crime, and then she'd kill herself, and then his wife would go mad, and then he'd kill himself.

Take it back to Ancient Greece (where prostitution was the norm for men, though still disreputable for women), and he'd end up having slept with his daughter. Then Hera would blind him. Or something.

You'd think I would have blogged this story, but no, I passed it up, yet here's Glenn Reynolds, blogging and displaying a whole Gloria-Allred-with-the-pliers photograph:

I have just 2 things to say:

1. Airport security people don't force you to do anything — e.g., rip out your pus-stuck nipple tacks with pliers — they give you a choice. You can go forward onto your flight by accepting the search or turn around and leave.

2. When I see Gloria Allred, the direction I feel like turning is to "South Park." What's that episode where they mock Gloria Allred? Well, their website is so fabulous that you can not only easily search using your key word, but you can watch the whole episode. It's "Cripple Fight."

Joe Queenan explains — at some length — exactly what it takes for a movie to be the worst movie ever made. And by that standard, something like "The Hottie and the Nottie" isn't even in the running. To be truly bad, at the very least, important people had to have worked very hard making something that they believed was going to be quite profoundly wonderful.

Link via Dan Drezner, who thinks the worst movie he's seen, by Queenan's standard, is "Caligula." Queenan adheres to the "Heaven's Gate" school of thought.

And when I noticed it again today while reading How Appealing, I was tempted to write a post about the existential angst of Howard Bashman — that poor man, writing a blog that flags each legal thing that makes the news, forced by his own chosen vision of the blog to post whenever the media-hungry justice lumbers out into the world and the Associated Press takes note. But I found the AP article just interesting enough to make me want to do this block and indent quote:

At a conference of [lawyers from the Food and Drug Law Institutea], Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices.

I love that. If you want to buy ABC3D by Marion Bataille — it's available in the fall — go here.

I found that via Drawn! where I'd forgotten to go for a while and where I saw plenty of other very nice things, like this street-art dog made of plastic bags that inflate and make the dog stand up when the subway passes below:

March 27, 2008

I think they look great together. They seem to loosen each other up. They're sort of a cute odd couple. Don't know why Mitt needs the airline blankie on his lap, but the two guys seem to complement one another, don't you think?

IN THE COMMENTS: While there is a fair amount of agreement that John and Mitt are nicely Oscar-and-Felix-y, everyone seems to think that's not his blankie that's his jacket. Do men drape their jackets over their knees? Is it a leg warming method or a trick for keeping the jacket from getting wrinkled? Whatever it is — blanket or jacket, leg-warmer or anti-wrinkle precaution — it seems a bit... well, it's Felix-y, isn't it?

My son Christopher Althouse Cohen has been keeping me updated about how things look from the perspective of a county convention delegate in Texas. (See here, here, and here.) Now, he sends this rather alarming message:

Here's an e-mail from the Travis County Democrats to all the delegates. This is the first time anyone from the Democratic party, not counting the individual campaigns, contacted the delegates, and it's two days before the convention. The convention is all day on a Saturday, starting at 7:00am:

You are receiving this email because you are probably a delegate to the upcoming Travis County Democratic Party Convention, this Saturday, March 29.

First of all, thank you so much for participating in you March 4th Primary Precinct Convention! The Travis County Democratic Party (TCDP) welcomes those of you who are new to this process. And we also thank you for your patience for seeing it through that evening as we know some of you experienced difficulties due mostly to just the sheer number of Democrats that turned out to caucus.

It goes on to say when and where the convention is, and that they will send out more information, like where to get our delegate credentials, later.

One frustrated delegate sends out this e-mail to the entire mailing list:

I do not understand your suggestion that I am "probably" a delegate. I believe that I was elected to be a delegate and since I have not been notified otherwise, presumably I am a delegate. My guess is that is why you sent me this e-mail. If there is a possibility that my status may change due to some circumstance that you are not publishing please let me know immediately so I can decide whether I want to waste twelve hours on Saturday for no reason.

Do you seriously think that people will be pleased at the notion of spending up to three hours to register for an event that will then take at least another nine hours? A commitment of twelve plus hours is ludicrous in and of itself, as is your notion that you can notify people only two days in advance of an event of this magnitude and that your notification should be devoid of significant information that you will "soon" be sending. When are you going to send it, Friday night?

The caucus that I attended was poorly planned and then, to add insult to injury, the results are not yet known almost a month later. It looks like the county convention will be as bad or worse. Registration at the caucus took over an hour. Knowing that, and since you now have a data base of delegates, why not have us register and be credentialed on-line?

Here's part of an e-mail that I wrote to that delegate:

Hi,

My name is Chris, and I'm a delegate in another precinct. I got your e-mail to the Travis County Delegates because I'm on their list as a delegate. I just thought I'd talk to you about the convention. First of all, I think they used the word "probably" because they are using a big mailing list of over 10,000 people and they're trying to allow for errors. There is a list online of ALL the delegates and alternates in all the precincts, and I did a quick search for your name and found that you are.

I'm sorry they haven't done a better job making sure all the delegates have all the information they need. Part of the problem is that it's the job of the Delegation Chair in your precinct to let every delegate in that precinct know when and where the convention is. Looking at your precinct, I notice that you are a delegate for Clinton and the Delegation Chair in your precinct supports Obama. The same thing is true in my precinct--I'm for Clinton, and my Delegation Chair, who has never contacted me, is for Obama. It was actually the Obama Precinct Captain who told me, when I asked her a series of questions about the rules a few weeks ago, that it's the Delegation Chair's responsibility. To make up for this, I have made a point of personally calling and e-mailing all the Clinton delegates in my precinct (235), who would be out of the loop if it were left to the Delegation Chair.

Here's the problem: if the Clinton delegates who are in precincts with Delegation Chairs who support Obama (in other words, any precinct with an Obama majority, since those Chairs were voted on at the caucus) don't show up because those Delegation Chairs only contacted the Obama supporters, Obama will get delegates he didn't earn. The race is all about delegates, and those delegates will be determined by those who show up at the county convention, then determined by those who are sent on to the state convention. We can't let them win more delegates just by not telling us when the convention is!

Yesterday, I blogged about how the Obama campaign sent my son a postcard urging him to vote for Obama at the Texas county convention. He's a delegate representing the people who caucused for Clinton at one of the district caucuses in Austin, Texas. Today, someone whose email address indicates his name is Matthew Berg sent this email to me and my son Chris:

Hello Chris (and Ann),

I am a volunteer for the Obama campaign in Texas. I saw this post (via Marc Ambinder), and was surprised, because I thought we were only contacting Obama delegates. That's what we've been in my part of TX, anyway.

So I checked the voter file (screenshot attached), and it looks like there was data entry error. You ended up being coded as BOTH a Hillary Clinton and a Barack Obama delegate. Apparently both the Texas Democratic Party and the Travis County Party added your data, and it looks like one of them made a mistake. I think the postcards are being sent to anyone coded as an Obama delegate, which (mistakenly) includes you. I deleted the Obama delegate code, so you shouldn't get mistakenly bothered again.

Anyway, have fun at your convention.

Thanks,

Matt

Yeah, have fun, kids. Play at your little democracy thing. Meanwhile — you, you pesky little blogger-connected county delegate — you won't be seeing any of our mailings anymore. We've stricken your name from our list. And if anyone else shows up and complains about Obama mailings to Clinton delegates, we can fix their double-coding too. Now, go off and don't worry anymore.

Do you trust the caucus process?

UPDATE: Chris emails:

I just asked some of the other delegates if they've gotten material from the Obama campaign. The only one to respond was a Clinton delegate, who said he's also received fliers from Obama, and is just surprised that he's gotten material from Obama but not from Clinton. Now I don't think it was a mistake. I think they just tried to make it look like one after the fact.

ANOTHER UPDATE: I have email from an Obama county convention delegate saying he's gotten email from the Clinton campaign. (I recognize the email as something Chris got — an invitation to a conference call tonight with Bill Clinton.)

Apparently, Obama has mailed these postcards to all Texas county delegates, not just his own. This is precisely what the Clintonites did in Iowa. If you'll remember, Clinton spokesman Phil Singer told me at the time that the Iowa Democratic Party had provided the campaign with an incomplete list of delegate affiliations, meaning that "the point of the call is to identify our delegates." But a quick check with the IDP revealed that "80 percent" of the county delegates were, in fact, linked to their chosen candidates on the lists sent to the campaigns--including at least one Obama supporter, Lance Jenkins, who specifically reported receiving the Clinton robocall.

That means that both Obama and Clinton are, in effect, asking their rival's delegates for support.

Now, don't get me wrong. Both the Clinton call (which included a "press 1 if you support Hillary" option) and the Obama postcard are serving another purpose--roll call and reminder, respectively. What's more, wooing delegates at the county level--or, for that matter, the national level--is part of the game (although both campaigns have forsworn the practice, at least nationally); campaigns are supposed to make sure that the maximum number of supporters show up at each level (county, district, state). And there's almost no chance that such subtle seduction would work to any significant degree. I mean, anyone swayed by a robocall or a postcard--especially the hardcore supporters chosen to serve as delegates--doesn't deserve to vote in the first place.

But these under-the-radar "outreach efforts"--which essentially say, "By the way, vote for me"--are worth remembering. Because if neither Obama nor Clinton clinches the nomination by the end of primary season in June, they'll be forced to spend the summer jockeying for any possible advantage--and this is exactly the sort of passive, grey-area poaching that you can expect to see.

That got a response from the Obama campaign:

According to Obama spokesman Bill Burton, the post card in question was mistakenly sent to a Clinton delegate--not, as I previously believed, to the entire list of Texas county delegates, regardless of affiliation. "The Texas Democratic Party gave us a list of delegates that indicated him as an Obama delegate--which is why he got the errant post card," he says. "The suggestion that we have a passive strategy of trying to flip Clinton's pledged delegates by sending one postcard to one guy is pretty ludicrous on its face." If that's what happened, I absolutely agree. I'm double-checking with the Texas Democratic Party to confirm that the delegate in question was listed as a Clinton supporter and find out whether others also received the mailing. I'll post another update when I hear back.

And here's how Christopher responded to all that:

Andrew Romano,

I wanted to respond to your post about the the post card I was sent by the Obama campaign. Bill Burton's explanation is, I think, inaccurate. Here is the list published by the Travis County Democrats online, which clearly indicates that I am a Clinton delegate:

http://www.westaustindemocrats.org/Delegates.aspx?P=235

I am the Hillary Convention Captain in my precinct, so I was actually sent that list a while ago, I believe as soon as it was released to the campaigns, so that I could check my precinct's list for accuracy. There were some spelling errors on that list originally, but my entry was always correct, and I was always listed as a Clinton delegate there.

A volunteer wrote to me and was quoted in the post you linked to, and his explanation was that I was double-coded as both an Obama and a Clinton supporter in the list they used. The Travis County Democrats list had me only as a Clinton supporter, so if I really was double-coded, it seems like it was the Obama campaign that added the extra code, intentional or not.

I actually thought it could have been a mistake, so I e-mailed a couple of the Clinton delegates in my precinct, and asked if they had received materials from Obama. One of those two Clinton delegates said, "I have received mailings form the Obama campaign...Suprised I haven't received anything from the Clinton campaign." The other delegate I wrote to hasn't responded, but she doesn't e-mail as much. In any event, I don't think this was sent to just "one guy."

Thanks for writing about this.

-Christopher Cohen

Chris later adds that the other Clinton delegate he wrote to emailed him:

[She] said that she, too, had received post cards and e-mails. Were all three of us accidentally double-coded or written in as Obama delegates? I personally doubt it.

At oral argument yesterday. The case, Indiana v. Edwards, asks whether a criminal defendant who is competent to stand trial has a right to represent himself if that's what he wants to do. Is there some level of sanity at which you can go to trial but be forced to yield to representation by a lawyer? Kennedy's wisecrack came in response to a point made by Edwards's lawyer: Edwards did respond comprehensibly to the judge's legal questions.

Only Justice Antonin Scalia appeared strongly on Edwards' side...

"He can plead guilty if he wishes and that's OK," Scalia said. "Only he can't put on an incompetent defense?...The state still has to prove his guilt beyond a reasonable doubt."

Indiana Solicitor General Thomas Fisher said the right to self-representation is not absolute. "It is within the state's authority to override self-representation when the defendant can't communicate coherently," Fisher said.

Hey, that's better! In fact, that's great! These two dogs saw that I was trying to photograph them, struck this pose, and held it while I took 10 pictures. Maybe I do need a dog or two. If they'd pose, like that....

Says Meghan McCain, who's got a huge WaPo article about her and her blog. She's a nice asset to the campaign. I think in her position it's effectively political to not be political. Talking about mascara and "Project Runway"... that works! It makes John McCain better, doesn't it?

What may be less obvious is that if reports [of the supposed health benefits of marriage] were more accurate and less caricatured, that would also be good for anyone who is, or wants to be, coupled. When singles are stigmatized, there is a risk that some people will be tempted to couple and marry for the wrong reasons — to escape the cultural muck that comes with being single. When singles are no longer marginalized or demeaned, then people who want to couple can do so from a position of strength. Rather than running away from singlehood to escape the stigma, they can move toward marriage or coupling as something they want to embrace.

Then, apparently too enigmatically, I said:

Ah, but what if they don't?

The pleasures of singlehood must be kept hush-hush. It's not a legitimate life style, you hear?

My point — which is a serious one (though made in what is a humorous style that perhaps only I appreciate) — is that society needs men and women to form solid families. It can get along if some people opt out, but things won't go well if too many people fail to take this path. Hence, there is a lot of pro-marriage propaganda out there. Maybe there's too much and that it may cause some individuals to marry too soon. If there were less propaganda, maybe marriage would be improved, because people would "embrace" it for its real value instead of latching onto it out of fear of being single. My point is that if the positive side of singlehood is promoted, maybe far too many people will avoid the difficult work of finding a partner and forming a stable family unit, to the detriment of society.

Can singlehood be portrayed as good but only good enough to reduce the number of bad marriages and not good enough to attract the kind of staunch adherents who advocate marriage as a way of life? Is DePaulo's book a nice, reassuring middle-of-the road sort of a thing, designed to take the edge off the predicament of not having a spouse? Or is she really promoting singlehood at the expense of marriage? If she is, you see the problem. That's the basis of my punchline: "The pleasures of singlehood must be kept hush-hush. It's not a legitimate life style, you hear?" I want to be single, and maybe so does DePaulo, but we might live to regret promoting this simple, free, self-indulgent life-style.

On the night of the Texas caucus, I blogged about the chaotic caucus my son Christopher attended. Scroll down to the 12:04 update.

Chris said that people didn't understand the rules. Could they just sign in and leave, or were they supposed to stay? Staying seemed to have to do with being chosen as a delegate for the state convention [actually it was the county convention], and they needed something like 40 delegates for the 300 voters in that precinct. What were they supposed to do if there weren't 40 caucus goers left in the end? The voters themselves had to "kind of take over and figure out what was happening." And this was in Austin with educated, politically involved caucus-goers, but there are 8,000 precincts in the state. Imagine the confusion on that scale. Caucuses are horrible, he said. Anyway, he ended up as one of the delegates for Hillary at the state county convention.

So he's supposed to go to the county convention and represent the Clinton, right? Or can he switch to Obama? Chris sends these photos of a card that came in yesterday's mail:

Chris emails:

I just got a flier in the mail from Barack Obama. It's clearly a special flier for delegates. It has my full name, address, and "Support Barack Obama at your County Convention!" There's no point in sending a message like that to anyone who isn't a delegate; the county convention is where the delegates meet, post-caucus. So, they got my name and address from a list of caucus delegates, and the lists of those delegates say who each person has pledged their support for. In fact, Clinton's campaign sent me a link to the lists that are sent to the campaigns, so I know what they look like. [ADDED: This list, which shows which candidate the delegate supports, is on line.] Technically, I could change my vote from Clinton to Obama, but the delegates were selected proportionately to represent the voters. Surely, he isn't suggesting that I do this, since he so firmly believes that delegates, pledged or super, can't go against the will of the people. Or is he?

He adds:

I'm not a "pledged" delegate yet. I'm not obligated to stick with Hillary until I sign-in at the convention and write "Clinton" by my name on the sign-in sheet, like voting at the precinct convention (the caucus). But the delegates were chosen at the caucus to proportionately represent both sides, so it would be against the will of the voters if I changed my mind about who I supported and then went to the convention and voted for Obama. Also, you could argue that it was computer-operated and they just plugged in the addresses of all the delegates, but obviously they would know that that would mean sending it to all the Clinton delegates.

Interesting. I don't think the Obama campaign is doing something wrong, but this mailing shows that the Obama campaign is fighting to flip Clinton delegates in Texas. Is Clinton doing the same thing and will some delegates slip away? What's really striking is that the effort of going out to a caucus in Texas on primary night doesn't seem to matter as much as it should. And, as Chris said, it's a tad hypocritical for Obama to encourage delegates to change sides, since he is the one who is trying to make a big principle out of binding the superdelegates at the national convention to the will of the voter.

March 25, 2008

I'm not really blogging "American Idol" this year, but I just wanted to say that I actually enjoyed one of the performances this week — which almost never happens — David Cook singing "Billie Jean." He sang it the Chris Cornell way — check that out here — so it wasn't all that original, but it was quite entertaining.

I also like Jason Castro, and the song he did, "Fragile," means a lot to me. Unfortunately, idiots in the audience clapped along atrociously. The song has no pronounced rhythm and dear sweet Jason was singing it in a low key delicate way that would have been entirely appropriate but for that horrible clapping. Anyway, here's the original from Sting.

Michael Johns singing "We Are the Champions" was okay. There's no way to approach the original though, is there?

There were a bunch of others, but I'm not in the mood to write about them. Feel free to talk about them. That one girl who needs to go home was wily enough to sing that "God Bless the U.S.A." thing to win extra votes from undiscerning patriots. Ah, but I wasn't going to talk about the rest of the crowd...

To better understand [the peddlers of "detoxification"], it's necessary to define what they mean by toxins. Are they bacteria? Chemical pollutants? Trans fats? Heavy metals? To avoid being tested, they leave this pretty vague. Actual medical treatments will tell you exactly what they do and how they do it. Alternative detoxification therapies don't do either one. They pretty much leave it up to the imagination of the patient to invent their own toxins. Most people who seek alternative therapy believe themselves to be afflicted by some kind of self-diagnosed poison; be it industrial chemicals, McDonald's cheeseburgers, or fluoridated water. If the marketers leave their claims vague, a broader spectrum of patients will believe that the product will help them. And, of course, the word "toxin" is sufficiently scientific-sounding that it's convincing enough by itself to many people.

Read the whole thing, but be careful not to stare too long into that picture of "mucoid plaque"... lest it stare back at you. You may dream of it crawling into your bellybutton and getting "super drunk" on your blood.

ADDED: If you think losing some blood is beneficial, why not donate blood? Why feed a leech (and pay for the privilege)? Donate blood to the Red Cross and donate whatever money you'd pay the leech-wielder to charity. And I should note that there are some legitimate medical uses for leeches. This is an excellent New Yorker article on the subject.

By 6 to 3, the court ruled that the president went too far in 2005, when he decreed that the states had to abide by a 2004 decision by the World Court. That decision found that several dozen Mexican citizens who had been sentenced to death in the United States had not been given the assistance from Mexican diplomats that they were entitled to receive under an international treaty....

Mr. Medellin’s conviction and sentence were upheld in the Texas courts despite the 2004 finding by the World Court, and the Supreme Court concluded on Tuesday that President Bush had no authority to order the state courts to reverse themselves, no matter what the World Court said....

The Supreme Court ruling acknowledged that President Bush, in pressing Texas to take another look at the Medellin case, was acting on behalf of the “plainly compelling interests” of fostering observance of the Vienna Convention and trying to maintain good relations with other countries.

However, the ruling added, “The president’s authority to act, as with the exercise of any governmental power, ‘must stem either from an act of Congress or from the Constitution itself.’ ” The language cited was from a 1952 ruling in which the high court found that President Harry S. Truman did not have the authority to have the federal government seize and run steel mills.

UPDATE: Here's the Wall Street Journal article, which emphasizes the insulation of the state courts from the dictates of the international court — on treaties that the U.S. has signed:

Treaty obligations, in other words, do not necessarily take on the force of law domestically. Rather, Congress must enact legislation for whatever provisions -- such as consular notification -- that it wants to make the formal law of the land. This distinction matters because it establishes a fire wall between international and domestic law. It also protects the core American Constitutional principles of federalism and the separation of powers. As Justice Roberts points out, the courts must leave to the political branches "the primary role in deciding when and how international agreements will be enforced."

Of course, President Bush attempted to take the action necessary to make the treaty obligation enforceable in state courts, and this is the exercise of power that the Court rejected.

Tony Mauro notes that the Supreme Court's cert grant yesterday in Pearson v. Callahan imposed a new issue on the parties: whether Saucier v. Katz should be overruled:

The 2001 decision in Saucier established a two-step test for deciding whether police deserve immunity from lawsuits claiming they violated someone's constitutional rights. First, it must be established that the claimant's constitutional rights were violated. If so, the next question is whether that right was clearly established — in other words, well-enough known that a reasonable officer should have known what it was.

Don't the questions seem out of order under Saucier? If the question whether there is a right is unclear, there will be immunity and the defendant will win, resolving the dispute. The question will also be hard to answer if it's unclear, and it is also unnecessary to the outcome of the case. So why put it first? The main reason is to extract an articulation of the law from the court, but ordinarily the rule is to avoid unnecessary questions of constitutional law.

But maybe we should go against general rule so that the law doesn't remain unclear. Imagine case after case resolved on the question of immunity, because the law is unclear. When will the law get clear? There seems to be a chronic dysfunction in the lawsaying process without Saucier. And this problem is not limited to lawsuits against the police. All sorts of lawsuits against government actors raise qualified immunity defenses.

It should be noted that Justice Breyer questioned Saucier in his concurring opinion in a 2004 case called Brosseau v. Haugen — where he was joined by the very interesting combo of Scalia and Ginsburg:

I am concerned that the [Saucier] rule rigidly requires courts unnecessarily to decide difficult constitutional questions when there is available an easier basis for the decision (e.g., qualified immunity) that will satisfactorily resolve the case before the court. Indeed when courts’ dockets are crowded, a rigid “order of battle” makes little administrative sense and can sometimes lead to a constitutional decision that is effectively insulated from review, see Bunting v. Mellen, 541 U.S. 1019, 1025 (2004) (Scalia, J., dissenting from denial of certiorari). For these reasons, I think we should reconsider this issue.

I think it plain that this general rule should not apply where a favorable judgment on qualified-immunity grounds would deprive a party of an opportunity to appeal the unfavorable (and often more significant) constitutional determination. That constitutional determination is not mere dictum in the ordinary sense, since the whole reason we require it to be set forth (despite the availability of qualified immunity) is to clarify the law and thus make unavailable repeated claims of qualified immunity in future cases.

So, you see there is something dysfunctional in front-ending the substantive question whether there is a right. The government hears that there is a right, and this will affect what it can do in the future, but then the government defendant wins on the immunity defense, and therefore can't appeal. Justice Scalia explicitly expressed hostility to the lower court judges' capacity to announce the existence of new right while cutting off the power of the Supreme Court to review them.

In college, "I chose my friends carefully," he said in his first book, "Dreams From My Father."

These friends included "Marxist professors and structural feminists and punk rock performance poets" -- in Obama's own words -- as well as the "more politically active black students." He later visited a former member of the terrorist Weatherman underground, who endorsed him when he ran for state senator.

Obama didn't just happen to encounter Jeremiah Wright, who just happened to say some way out things. Jeremiah Wright is in the same mold as the kinds of people Barack Obama began seeking out in college -- members of the left, anti-American counter-culture.

... Obama was one of those people seeking a racial identity that he had never really experienced in growing up in a white world. He was trying to become a convert to blackness, as it were -- and, like many converts, he went overboard....

The irony is that Obama's sudden rise politically to the level of being the leading contender for his party's presidential nomination has required him to project an entirely different persona, that of a post-racial leader who can heal divisiveness and bring us all together.

The ease with which he has accomplished this chameleon-like change, and entranced both white and black Democrats, is a tribute to the man's talent and a warning about his reliability.

For another three months, we’ll have the Carvilles likening the Obamaites to Judas and former generals accusing Clintonites of McCarthyism. For three months, we’ll have the daily round of résumé padding and sulfurous conference calls. We’ll have campaign aides blurting “blue dress” and only-because-he’s-black references as they let slip their private contempt.

For three more months (maybe more!) the campaign will proceed along in its Verdun-like pattern. There will be a steady rifle fire of character assassination from the underlings, interrupted by the occasional firestorm of artillery when the contest touches upon race, gender or patriotism. The policy debates between the two have been long exhausted, so the only way to get the public really engaged is by poking some raw national wound....

When you step back and think about it, she is amazing. She possesses the audacity of hopelessness.

Brooks must have thought that last line was too clever not to use, but it's actually only a childish flipping of a phrase to its opposite, and, worse, it's not even true. She has the audacity of hope. By calling hope hopelessness, Brooks enables himself to ask why she goes on and to pretend there isn't the obvious answer: she has hope of winning.

Why does she go on like this? Does Clinton privately believe that Obama is so incompetent that only she can deliver the policies they both support? Is she simply selfish...?

How is what's she's doing any different from what every other candidate does as long as there's a chance? To say it's "selfish" or "narcissistic" to think you're special is to criticize everyone who has what it takes to campaign for the presidency.

Brooks reviles Clinton for "her relentlessly political life... encased in the apparatus of political celebrity," with an "impersonal" campaign that's "like a machine for the production of politics" that "plows ahead... following its own iron logic." So... she's a politician with a campaign. That's special because.... ?

Brooks challenges her to step outside her own machine and stop it, to "surprise everybody with a display of self-sacrifice." Why? Why should she behave differently from every other politician?

Her opponent is wounded by a problem of his own making. Brooks would have you think the Clinton campaign is chewing away at him with scurrilous, pointless attacks, but Obama's problem with Jeremiah Wright is something important about him that we need to think through. Meanwhile, she's reaped some important victories in key states and stands to win big in Pennsylvania — which will be a test of how deeply the Wright controversy has hurt Obama. For her to stay in now is not bizarrely robotic behavior. It utterly normal.

Or does it just seem wrong coming from a woman? Wouldn't it be wonderful if the lady displayed self-sacrifice?

[T]he Hillary-must-quit contingent seem to forget one thing: she’s still winning states, and people still want to vote for her. Obama hasn’t won the nomination, nor will he win it in the primaries. Why should she quit under those circumstances? By all indications, Hillary will likely win almost all of the upcoming contests, with just North Carolina as a potential exception.

The same people who dreamed up the superdelegate structure and who made it impossible for the primaries to select between two evenly-matched candidates want to be let off of the hook for the disaster they created.

I'm not convinced the superdelegate structure is a disaster. It's a structural safeguard. I don't buy the argument that "democracy" must prevail when you're talking about voting (or, worse, caucusing) to pick a candidate for an election that takes place up to 10 months later. A candidate who's popular in February may look weak by the end of the summer. New information emerges, world events change, different issues come to the foreground, and the other party commits to its nominee. The superdelegates have the power to save their party from a disastrous candidate.

So, Hillary's ahead in popular vote and electoral votes, in the big states and the states most likely to go Democratic in November. She's ahead in the big states that are critical for Dems in November. Obama's got a small lead in overall pledged delegates and has won more Republican states that have a slim to no chance of going blue in November.

The superdelegates need to consider who will bring it home for Democrats in November. The results so far indicate that person is Hillary Clinton, not Barack Obama.

March 24, 2008

... wait until you get a load of the next Chicago "Reverend," one James Meeks, another South Side horror show with a special sideline in the baiting of homosexuals. He, too, has been an Obama supporter, and his church has been an occasional recipient of Obama's patronage. And perhaps he, too, can hope to be called "controversial" for his use of the term house nigger to describe those he doesn't like and for his view that it was "the Hollywood Jews" who brought us Brokeback Mountain.

I think it's a good idea for Obama and Clinton proponents to propose different measures for the purposes of argument to the superdelegates, like Bayh's test. But that test needs to be refined to focus on states that might go Republican in the fall. New York, California, and Massachusetts don't matter. You may think the fairest test really is the pledged delegates, because that is what the candidates were competing for. Bayh's test retroactively treats state primaries and caucuses as though they were winner-take-all, but if they were the candidates would have fought differently. But it's not clear to me that the candidates relied onsomething that the superdelegates have to respect.

The superdelegates should be using their power to choose the best candidate for the party, and there are many arguments that could refute the assumption that the candidate that collected the most delegates — but failed to lock the nomination — will do best in November. Since November is crucial, the Electoral College should be taken into account, but not in the crude way Bayh suggests, since the superdelegates shouldn't worry about marginal preferences for Obama or Clinton in states that will almost certainly give its electoral votes to whichever candidate the party nominates. Thus, Clinton's popularity in Ohio and Pennsylvania (and, face it, Florida) matters, but her popularity in New York and California doesn't.

I can't really explain it myself, but, in response to the criticisms I've linked, here are 2 observations:

1. Being a law professor doesn't necessarily make the Supreme Court your dominant concern when you are voting for President. Kmiec clearly states his opposition to the Iraq war.

2. Even if you like conservative Supreme Court Justices, you may think there should be some balance on the Court and that it is not healthy — or good for conservatism in the long run — to have a long unbroken chain of appointments of one type of Supreme Court Justice. (I said something like that here.)

Writes Glenn Reynolds, who's irritated at being slammed for linking to some blogger's Happy-Easter post which turned out to be right above that blogger's co-blogger's racist rant. In fact, one of my regular commenters — in this thread — seems to be taking me to task because I've been linked by Reynolds who linked to the guy who blogs with the guy who said something racist. This is the dog that worried the cat that chased the rat that ate the malt....

Good lord, these last couple weeks have hypersensitized people to race. I imagine that Glenn Greenwald thinks he's helping Barack Obama by finding obscure racism on a minor blog and making some leaps to pin it on a high-profile blogger so it might start to matter, but I don't think it helps Barack Obama. Greenwald doesn't seem to mind if he's unfair to Reynolds, but he's swinging wildly without thinking through whether it's even working for the benefit of Obama. I don't think it is. Forefronting race — which Obama's opponents did by making us listen to Jeremiah Wright — undercuts Obama's transcendent, unifying message.

"Honest dialogue will not be easy at first. We will have to get past defensiveness and fear and political correctness and other barriers to honesty," warned president Clinton in 1997 launching his year-long conversation about pigment differences. "Emotions may be rubbed raw, but we must begin" (presumably this is just one of the many things Bill Clinton desires to have rubbed raw).

Yeah, great... Bill Clinton. Who knew the form Bill Clinton's eagerness for rubbed-raw racial dialogue would take a decade later?

But guess what? Normal people everywhere tend not to discuss race, and I am not sure exactly why so many concerned liberals want to change that. After all, isn't the mantra to "get past our differences"? Well how are we going to do that if we are constantly harping on them... There are hundreds of black politicians who've made racial "conversations" their modus vivendi. There are many white politicians who've made their careers over their willingness to "discuss race frankly."...

Meanwhile, Americans are dealing with racial tensions in an intelligent manner, which is to say ignoring them... [T]he average person realizes that if you want to get along with your fellow white or black man then you might want to discuss sports or the weather rather than longstanding racial grievances....

In America, most people have worked out a similar rule about racial conversations: Avoid them if you can, and keep them light and brief if you can't. Any honest conversation about race would have to include a vast number of things neither side wants to bring up. Of course, the assumption from people like Clinton — despite all his talk about moving past political correctness — is that white people need to hear how racist they are. Actually, that's not quite right. Clinton's assumption is that he is brave for telling race peddlers what they want to hear (and therefore deserves all the raw-rubbing he can get). But the assumption from his amen choir is that whites still need a good talking to. And many whites probably do. But no conversation can be one-way. At some point the view that most of the problems with the African-American community are cultural and cannot be remedied by more legislation will have to be aired. Are African-American leaders willing to listen to a full-venting of that perspective without screaming "racism" and storming out? I sincerely doubt it.

Think about it.

Anyway, to go back to the original topic, I'm not criticizing Reynolds for failing to see that the Happy-Easter thing he thought was nice was next to something that was completely nasty, but I think that if he had seen the racist post, he should not have linked to the nice Easter post. And this should highlight a larger problem with group blogging. I have seen a couple great solo blogs messed up by bringing in another blogger who did not carry on the first blogger's tone. Bloggers: Be careful who you blog with. Or be safe and blog alone.

He bends it and says: "How do you compensate? So, you say well, deal with it. Bend this over here. Oh, wait a minute, bend it a little bit there. And you're saying that it throws everything out of whack. What do you do?"

Here's what I do:

What's wire hangers doing in this closet? I'm glad you care about not bending the Constitution out of shape but.... wire hangers, why? Why? We put you on the most beautiful Court in the world. We give you these beautiful robes, and you treat them like they were some dishrag. The other Justices may treat the Constitution like it was some dishrag, but wire hangers, why? Why?

Atrios writes: "I believe the YouTube era begins the age when it is impossible to tell parody/irony/performance art from completely sincere product."

This video should be a lesson to everyone who is trying to hit the viral zone, though maybe no one will ever be able to do it quite like this again. Frankly, I think they push it a little too far (with the extremely bad singing and the not-ready-for-greenscreen clothing), but apparently you don't need to be subtle to trick lefties into spreading Republican propaganda.

[T]he stallion is drunk on his own rhetoric. Why not? It's great rhetoric.

We need beavers and we need stallions. Beavers get the work done. Stallions inspire us. And they both have limitations. Stallions have fragile legs (think Barbaro). And beavers are nothing without their teeth....

So let's stop talking about race and gender and let the beaver and the stallion both serve our country — in their own inimitable ways.

Fabulous metaphors, Erica. I understood right away about talking horse that gets drunk and breaks its leg. I couldn't find that episode of "Mr. Ed," but here he is in his home state of Hawaii: